According to the latest statistics provided by OSHA, there were approximately 73,000 federal and state plan inspections that occurred throughout the 2018 fiscal year. Were you one of those companies? If so, how did your company fare during the inspection? Was your company prepared? OSHA inspections, like any regulatory inspection, can be positive experiences or they can go poorly. The state of your current safety program obviously plays a significant role in how successful you are at getting through an OSHA inspection without citations or penalties, but there are other points of consideration as well that can contribute to the outcome of the inspection. This article will focus on these elements.
The very first thing to be aware of is how – how does OSHA typically end up at a company’s front door?
TYPES OF OSHA INSPECTIONS
OSHA focuses its inspection resources on the most hazardous workplaces in the following order of priority:
|1st||Imminent Danger – Any condition where there is reasonable certainty that a danger exists that can be expected to cause death or immediate serious physical harm.|
|2nd||Catastrophes and Fatal Accidents – Catastrophes – major incidents such as the hospitalization of three or more employees from a single event. Fatalities, amputations and a loss of an eye could also result in an inspection. Since 2015, OSHA has had incident reporting criteria that could lead to an inspection.|
|3rd||Complaints/Referrals Investigations – Employee complaints of unsafe and unhealthful working conditions. It can be either a Formal Complaint or a Non-Formal Compliant.|
|4th||Program Inspections/National Emphasis Programs – Aimed at specific high-hazard industries, workplaces, occupations, or health substances. OSHA selects industries for inspections based on factors such as injury rates, previous citation history, employee exposure to toxic substances, or random selection.|
|5th||Follow-Up Inspections – Determines whether previously cited violations have been corrected. If an employer has failed to abate a violation, the compliance officer informs the employer that he/she is subject to “Notification of Failure to Abate” alleged violations and may face additional proposed daily penalties while such failure or violations continue.|
OSHA’s updated recordkeeping rule expands the list of severe injuries that employers must report to OSHA. As of January 1, 2015, all employers must report the following:
- All work-related fatalities within 8 hours.
- All work-related inpatient hospitalizations, all amputations and all losses of an eye within 24 hours.
Note: Some state plans are different, see the state-specific guidelines.
The second thing to know and understand is what to expect during an OSHA inspection. The inspection process typically includes an opening conference, a program and training records review as they relate to the inspection, a walkthrough, employee interviews, and a closing conference. OSHA does not have to give advanced warning of an inspection. There are some rare circumstances, however, where they could. For example, it is possible they could provide advance notice to provide an employer with the opportunity to correct imminent danger hazards quickly.
ARRIVAL OF OSHA INSPECTOR AND OPENING CONFERENCE
You should always check an OSHA inspector’s credentials, which typically are presented upon arrival of the compliance officer. If unsure, get the inspector’s information (their business card is usually provided) and call the local OSHA office or the Department of Labor Office to confirm. There have been reported cases of scammers posing as OSHA inspectors, going to worksites and requesting payment of a fine. Understand that OSHA would never request immediate payment of a fine during an initial inspection.
During the opening conference, OSHA typically reviews the following with the employer:
- Purpose and scope of the inspection
- A copy of the complaint (if applicable)
- Process of the inspection (interviews, records, walk-through inspection, possible referrals and closing conference)
- Handouts – familiarity with OSHA
- Trade secrets guidelines
- Awareness of:
- Recent inspections
- Multi-employer worksites
RECORDKEEPING, WRITTEN PROGRAMS AND TRAINING RECORDS REVIEW
OSHA 300 logs tend to be the first thing reviewed by OSHA (and often go back five years) so be sure they are accessible and accurate. OSHA may choose to focus on a specific topic based on something observed on the log.
OSHA will likely request a review of certain required policies and training records. Be prepared in advance and have them organized in a known location. Do NOT give the inspector your entire safety policy and program records because they are likely only interested in the policies/programs that are related to the reason for their visit. Only show the programs and training records specifically requested by OSHA. Remember, this is not the time to ask all the questions about OSHA-related programs you have accumulated over the years.
During the walkthrough inspection portion of the OSHA visit, ensure that all members of the inspection party have appropriate personal protective equipment and that the inspector is always accompanied by a facility representative. The facility representative should be the same person throughout the inspection (two or more representatives could provide conflicting information). If at any time the facility representative has difficulty responding to a question, he/she should simply reply, “Let me get back to you on that. I don’t have all of the pertinent information at this time. I need to check with…” It is okay not to have all the answers or to politely and tactfully disagree. If you feel the inspector does not have an accurate perception or all of the facts, you can provide that information if you feel it works in your favor.
When walking through your plant, take them directly to the areas of interest rather than walking throughout the plant. Remember that anything you show them or anything they see during the walkthrough can be investigated further for potential violations. That is also a reason why you never want to leave the inspector alone. If OSHA takes notes, you should take notes. If OSHA takes a photo, you should take the same photo. And last but certainly not least, do not volunteer information during the walkthrough. Uncomfortable silences are better than talking too much (providing information that wasn’t asked for opens you up to further scrutiny).
The inspector should describe the apparent violations that they will be recommending to their local office Area Director. They may set appropriate abatement periods (cannot extend past 30 days) and will typically advise you and the employee representative (if applicable) of their right to participate in any subsequent conference. If any alleged violations were corrected on the spot, the inspector must state that they were abated. The inspector should explain the penalty procedure, citation package and posting requirements, along with explaining the right to an informal conference and/or to contest any violations.
ADDITIONAL POINTS OF CONSIDERATION THAT CAN DETERMINE THE SUCCESS OF AN OSHA INSPECTION
There are several additional points to consider before and during an OSHA inspection that can be contributing factors to your overall success in completing the process with zero or minimal citations. First, and well before OSHA arrives at your door, your company must make a few important decisions. Determine ahead of time who will be contacted when OSHA shows up at your door, who’s in charge of gathering documents, who will accompany the compliance officer(s) during the walkthrough, etc. Your preparation should also include determining a union representative if the facility has union workers – especially if it’s part of a contract. Be sure to designate alternates for employees assigned to accompany an inspector.
Most safety professionals agree that employer attitude, organization, and good housekeeping all can make a positive impression during an OSHA inspection. If you are disagreeable, that can pass on to the compliance officer – your mood will affect their mood. An inspector can note an employer’s lack of cooperativeness on their report. Having easily located written safety records is imperative. If it takes you a half-hour to locate your lockout/tagout policy or an SDS, you are going to look disorganized and that could give the compliance officer the impression that your safety program is lacking or that you don’t have the required documentation. Housekeeping is also very important. A dirty or cluttered workplace can immediately set the compliance officer off on the wrong foot. They may think to themselves, “If they can’t keep the floor and aisles clean, I wonder what else they haven’t been doing.”
The long unwritten rule with OSHA is: if it’s not in writing, it never happened. Besides standard safety training, document when your company does fire drills, safety committee meetings, brief toolbox talks, detailed incident investigations, safety improvements, etc. All of those things are just as important as safety training and you should get credit for them. They speak to your overall good faith, which is very important to convey during an OSHA inspection.
OSHA will typically wait a reasonable amount of time – up to an hour – before making note of any delays on the inspection report. This is the perfect time for employers to correct small hazards, such as making sure employees are wearing their applicable PPE, clearing areas in front of walkways, exit doors and fire extinguishers and assuring that forklift operators are wearing their seatbelts.
As a general rule, we don’t recommend refusing entry to OSHA. We have seen companies over the years with corporate policies that request a warrant for any government inspection. Quite frankly, that is a bad policy. Requesting to see a warrant before allowing an OSHA inspector to enter the workplace is likely to bring added scrutiny and suspicion. In most cases, they will get a warrant and will likely bring their most seasoned compliance officers who are very good at looking for possible OSHA violations.
Over the years, we have been through a lot of different OSHA inspections. We have seen common violations throughout these inspections, like safety records that are often overlooked by companies or those that they simply don’t have. Here are a few of them:
- OSHA 300 Recordkeeping (properly filled out and current)
- Including temp workers on OSHA 300 logs
- Lockout procedure periodic inspections
- Forklift reevaluations
- Written PPE hazard assessments with certification
- Bloodborne pathogens training
- Hazardous chemical inventory list
- Hazard communication training for all employees
- Medical evaluations for all respirator users
- Annual respirator training and fit-testing
Finally, be proactive and honest. Developing an ongoing safety program with all of the required components is the best preparation. It eliminates anxiety over the unknown and allows you to feel comfortable about your employees and the company. You know that if you receive an OSHA inspection, you’ll be able to put your best foot forward. If you haven’t been keeping your safety program up to date, it will be too late by the time OSHA shows up. Be honest in your answers because OSHA will know if you’re faking it. They will be happy to work with you if they feel you are genuine, doing your best and have the best interest of your employees in mind.